State of Louisiana Versus Tyrez Lee

• Court: Louisiana Court of Appeal
• Decided: November 4, 2020
• Docket: 20-KA-110
• Status: Unknown

Opinion

STATE OF LOUISIANA NO. 20-KA-110

VERSUS FIFTH CIRCUIT

TYREZ LEE COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 18-1983 HONORABLE DANYELLE M. TAYLOR, DIVISION "O" AND HONORABLE SCOTT U. SCHLEGEL, DIVISION "S" PRESIDING JUDGES

November 04, 2020

ROBERT A. CHAISSON JUDGE

Panel composed of Judges Jude G. Gravois, Robert A. Chaisson, and John J. Molaison, Jr.

CONVICTION AND SENTENCE AFFIRMED; REMANDED FOR CORRECTION OF ERROR PATENT; MOTION TO WITHDRAW GRANTED RAC JGG JJM COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Honorable Paul D. Connick, Jr. Thomas J. Butler Andrea F. Long Blair C. Constant

COUNSEL FOR DEFENDANT/APPELLANT, TYREZ LEE Bruce G. Whittaker

DEFENDANT/APPELLANT, TYREZ LEE In Proper Person CHAISSON, J.

Defendant, Tyrez Lee, appeals his conviction for possession with intent to

distribute cocaine, as well as his multiple offender adjudication and enhanced

sentence. For the reasons that follow, we affirm defendant’s conviction, multiple

offender adjudication, and enhanced sentence; however, we remand the matter for

correction of an error patent as directed herein. We further grant appellate

counsel’s motion to withdraw as attorney of record for defendant.

PROCEDURAL HISTORY

On April 13, 2018, the Jefferson Parish District Attorney filed a bill of

information charging defendant with possession with intent to distribute cocaine

weighing less than twenty-eight grams, in violation of La. R.S. 40:967(A).

Defendant pled not guilty at his arraignment.

On June 14, 2018, defendant withdrew his plea of not guilty and, after being

advised of his rights, pled guilty as charged. In accordance with the terms of the

plea agreement, the trial court sentenced defendant to five years imprisonment in

the Department of Corrections, suspended the sentence, and placed defendant on

active probation for five years, contingent upon his completion of the Swift and

Certain Probation Pilot Program. Pursuant to the terms of the plea bargain, the

State agreed not to file a multiple offender bill of information against defendant at

that time.

On January 7, 2019, the State, through the Department of Public Safety and

Corrections, filed a “Motion and Order for Hearing to Revoke Probation,” alleging

that defendant violated the conditions of his probation by failing to pay a

supervision fee and by failing to refrain from criminal conduct.1

1 In the motion to revoke, the State specifically alleged that defendant was arrested by the Jefferson Parish Sheriff’s Office on December 27, 2018, as a principal to second degree murder, attempted second degree murder, illegal use of a weapon, felon in possession of a firearm, and aggravated criminal damage to property.

20-KA-110 1 On November 22, 2019, the State filed a bill of information, pursuant to the

provisions of La. R.S. 15:529.1, seeking to have defendant adjudicated a second

felony offender. On January 22, 2020, after being advised of his rights, defendant

stipulated to the allegations in the multiple bill.2 The trial court then vacated

defendant’s original sentence of five years imposed on June 14, 2018, and pursuant

to the terms of the plea agreement on the multiple offender bill, resentenced

defendant to eight years imprisonment at hard labor without benefit of probation or

suspension of sentence.

Defendant thereafter filed two pro se motions to appeal on the basis of

illegal sentencing, alleging that the State had agreed not to file a multiple offender

bill against him when he entered his guilty plea to possession of cocaine on

June 14, 2018. On February 6, 2020, the trial court granted defendant’s motion for

appeal.

On March 2, 2020, defendant filed a pro se motion to withdraw and/or set

aside his guilty plea, in which he alleged that the State breached the June 14, 2018

plea agreement by filing a multiple offender bill of information against him. In

addition, defendant asserted that he received ineffective assistance of counsel

because his attorney induced and/or coerced him into pleading guilty to the

multiple offender bill of information. On March 5, 2020, the trial court dismissed

defendant’s motion without prejudice, noting that it lacked jurisdiction to rule on

this matter as defendant had already been granted an appeal.

ANDERS BRIEF

Under the procedure adopted by this Court in State v. Bradford, 95-929 (La.

App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110-11,3 appointed appellate counsel has

2 Although the transcript from the multiple offender proceedings indicate that defendant’s probation was revoked, the revocation proceedings are not contained in the appellate court record. 3 In Bradford, supra, this Court adopted the procedures outlined in State v. Benjamin, 573 So.2d 528, 530-31 (La. App. 4th Cir. 1990), which were sanctioned by the Louisiana Supreme Court in State v. Mouton, 95-981 (La. 4/28/95), 653 So.2d 1176, 1177 (per curiam).

20-KA-110 2 filed a brief asserting that he has thoroughly reviewed the trial court record and

cannot find any non-frivolous issues to raise on appeal. Accordingly, pursuant to

Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and

State v. Jyles, 96-2669 (La. 12/12/97), 704 So.2d 241 (per curiam), appointed

counsel requests permission to withdraw as attorney of record for defendant.

When conducting a review for compliance with Anders, an appellate court

must conduct an independent review of the record to determine whether the appeal

is wholly frivolous. If, after an independent review, the reviewing court

determines there are no non-frivolous issues for appeal, it may grant counsel’s

motion to withdraw and affirm the defendant’s conviction and sentence. However,

if the court finds any legal point arguable on the merits, it may either deny the

motion and order the court-appointed attorney to file a brief arguing the legal

point(s) identified by the court, or grant the motion and appoint substitute appellate

counsel. State v. Bradford, 676 So.2d at 1110.

In this case, defendant’s appellate counsel has complied with the procedures

for filing an Anders brief. He details the procedural history of the case and the

circumstances surrounding defendant’s guilty pleas and sentencing. He

particularly notes that defendant’s guilty pleas to the original and multiple offender

bills of information were not constitutionally infirm because defendant was

advised of and indicated that he understood the rights that would be waived by

pleading guilty. Further, appellate counsel recognizes that defendant was not

forced, coerced, or threatened to enter the guilty pleas, and that the sentences were

imposed in conformity with the plea agreements.

Defendant’s appellate counsel also addresses defendant’s claim that the State

breached the plea agreement by filing a multiple offender bill of information

against him and concludes his argument has no merit. Specifically, appellate

counsel notes that the record is clear that the State agreed to withhold the multiple

20-KA-110 3 offender bill only if defendant successfully completed his probation program,

which he did not. Defendant’s appellate counsel concludes that after a thorough

review of the record, he can find no non-frivolous issues to raise on appeal, and

accordingly, he requests permission to withdraw as attorney of record for

defendant.4

This Court has performed an independent, thorough review of the pleadings,

minute entries, bills of information, and transcripts in the appellate record. Our

independent review of the record supports appellate counsel’s assertion that there

are no non-frivolous issues to be raised on appeal.

We particularly note that the record reveals no constitutional infirmities or

irregularities in defendant’s guilty plea to possession with intent to distribute

cocaine. The transcript of the guilty plea proceeding and the acknowledgement

and waiver of rights form show that defendant was aware of the nature of the

charges against him, that he was properly advised of his Boykin5 rights, including

the right to a jury trial, the right to confrontation, and the privilege against self-

incrimination, and that he understood he was waiving these rights by pleading

guilty.

In addition, the record reflects that defendant was informed of the maximum

sentence of ten years that could be imposed and of the actual sentence that would

be imposed upon acceptance of his guilty plea.6 Further, during the plea colloquy,

4 In addition, defendant was notified of his right to file a pro se supplemental brief in this appeal by June 19, 2020. Defendant did not file a brief within that time frame; however, he filed a letter with this Court in late July, complaining that the uniform commitment order failed to reflect that his enhanced sentence was to be served concurrently with any and all sentences he was currently serving. See errors patent discussion. 5 Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). 6 La. C.Cr.P. art. 556.1(A)(1) provides that prior to accepting a guilty plea in a felony case, the court must first address the defendant and inform him of the nature of the charge, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law. In the present case, the trial court failed to advise defendant of the one-year mandatory minimum penalty provided by law. However, the trial court’s failure to inform defendant of the mandatory minimum sentence does not affect a substantial right and can be deemed harmless. La. C.Cr.P. art. 556.1(E). We particularly note that defendant was not prejudiced by the trial court’s omission because he was advised through the waiver of rights form of the actual sentence he would receive, and he received that sentence. This Court has held

20-KA-110 4 defendant confirmed that he had not been forced, coerced, or intimidated into

entering his guilty plea. After its colloquy with defendant, the trial court accepted

defendant’s guilty plea as knowingly and voluntarily made.

With respect to the multiple offender proceedings, the record shows that

defendant was likewise adequately advised of his rights. The waiver of rights form

and the transcript indicate that defendant was advised of his right to a hearing at

which the State would have to prove his multiple offender status and of his right to

remain silent throughout the hearing. Defendant was also advised of the potential

sentencing range as a second felony offender and the actual sentence he would

receive as a result of his stipulation. Defendant indicated that he was satisfied with

the way his attorney and the court handled his case, that he had not been forced or

coerced into stipulating to the multiple offender bill, that he understood his rights

and the legal consequences of pleading guilty to the multiple offender bill, and that

he wished to plead guilty. The trial court thereafter accepted defendant’s

stipulation as knowingly, intelligently, freely, and voluntarily made.

Although we have found no constitutional infirmities or irregularities in

defendant’s guilty pleas to the original and multiple offender bills of information,

we nonetheless feel compelled to address defendant’s suggestion that the State

breached its plea agreement with defendant by filing a multiple offender bill

against him.7 As noted by defendant’s appellate counsel in his Anders brief, this

claim has no merit. When defendant entered his guilty plea on June 14, 2018, the

State agreed not to file a multiple offender bill of information against defendant on

the possession with intent to distribute cocaine charge only if he complied with the

conditions of his probation program. Defendant was clearly aware that the State’s

that an advisement of the agreed upon sentence is sufficient for compliance with La. C.Cr.P. art. 556.1. State v. Kent, 15-323 (La. App. 5 Cir. 10/28/15), 178 So.3d 219, 229, writ denied, 15-2119 (La. 12/16/16), 211 So.3d 1165; State v. Williams, 18-137 (La. App. 5 Cir. 9/19/18), 254 So.3d 1260, 1264. 7 We note that defendant does not raise this issue on appeal, but he did raise it in his motion to appeal and his motion to withdraw and/or set aside his guilty plea that were filed in the trial court.

20-KA-110 5 agreement not to file a multiple offender bill depended on his compliance with the

program. At the June 14, 2018 guilty plea proceeding, the trial judge specifically

asked defendant if he understood that as long as he stayed in compliance with the

Swift and Certain Probation Program no multiple bill would be filed against him.

Defendant responded affirmatively. Pursuant to further questioning by the trial

court, defendant also indicated that he reviewed the probation contract with his

attorney and that he understood what was expected of him in the Swift and Certain

Probation Program. In addition, defendant signed the probation contract, which

provided that “the District Attorney reserves its right to file a habitual offender bill,

if available, if the Participant fails to successfully complete the Swift & Certain

Probation Pilot Program.” The record reflects that defendant did not complete the

program, permitting the State to file the multiple bill in accordance with the plea

agreement.

With regard to sentencing, we note that defendant’s enhanced sentence was

imposed in accordance with the plea agreement, which was set forth in the record

at the time of the plea. This Court has consistently recognized that La. C.Cr.P. art.

881.2(A)(2) precludes a defendant from seeking review of an enhanced sentence to

which the defendant agreed. State v. Robinson, 15-661 (La. App. 5 Cir. 2/24/16),

186 So.3d 1269, 1272. In addition, defendant’s enhanced sentence is within the

sentencing range prescribed by the applicable statutes. See La. R.S. 40:967(B)(1);

La. R.S. 15:529.1(A)(1).

Based on the foregoing, we find that defendant’s guilty pleas to the original

and multiple offender bills of information and the enhanced sentence imposed

pursuant to the plea agreement do not present any non-frivolous issues for appeal.

ERRORS PATENT REVIEW

Lastly, we have reviewed the record for errors patent in accordance with La.

C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland,

20-KA-110 6 556 So.2d 175 (La. App. 5th Cir. 1990). Defendant, by a letter written to this

Court, has brought one error to this Court’s attention that requires correction.

Defendant asserts that the uniform commitment order fails to reflect that his

sentence was to be served concurrently with other sentences he was currently

serving, as directed by the trial court when sentencing defendant as a multiple

offender. Defendant is correct in his assertion. Under Section “D” of the uniform

commitment order, which relates to sentence conditions, there is a sentence that

reads as follows: “This sentence shall be concurrent with any or every other

sentence the offender is now serving.” However, the “yes” block next to this

sentence was not checked off to show this statement’s applicability to defendant.

In addition, the January 22, 2020 minute entry/commitment fails to reflect the

concurrent nature of defendant’s sentence. Since the trial court directed in the

transcript that defendant’s sentence was to run concurrently with any and all other

sentences defendant was currently serving, we remand the matter to the trial court

with instructions to correct the minute entry/commitment and the uniform

commitment order to reflect the concurrent nature of defendant’s sentence. We

direct the Clerk of Court for the 24th Judicial District Court to transmit the

corrected minute entry/commitment and the uniform commitment order to the

appropriate authorities in accordance with La. C.Cr.P. art. 892(B)(2) and to the

Department of Corrections’ legal department. See State v. Garcie, 17-609 (La.

App. 5 Cir. 4/11/18), 242 So.3d 1279, 1290.

DECREE

Because appellate counsel’s brief adequately demonstrates by full discussion

and analysis that he has reviewed the trial court proceedings and cannot identify

any basis for a non-frivolous appeal, and an independent review of the record

supports counsel’s assertion, we affirm defendant’s conviction, multiple offender

adjudication, and enhanced sentence, and we remand the matter for correction of

20-KA-110 7 an error patent as noted herein. Further, we grant appellate counsel’s motion to

withdraw as attorney of record for defendant.

CONVICTION AND SENTENCE AFFIRMED; REMANDED FOR CORRECTION OF ERROR PATENT; MOTION TO WITHDRAW GRANTED

20-KA-110 8 SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

MARY E. LEGNON FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON SUSAN BUCHHOLZ STEPHEN J. WINDHORST FIRST DEPUTY CLERK HANS J. LILJEBERG JOHN J. MOLAISON, JR. FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX www.fifthcircuit.org

NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY NOVEMBER 4, 2020 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

20-KA-110 E-NOTIFIED 24TH JUDICIAL DISTRICT COURT (CLERK) HONORABLE DANYELLE M. TAYLOR (DISTRICT JUDGE) HON. SCOTT U. SCHLEGEL (DISTRICT JUDGE) ANDREA F. LONG (APPELLEE) THOMAS J. BUTLER (APPELLEE)

MAILED BRUCE G. WHITTAKER (APPELLANT) TYREZ LEE #714600 (APPELLANT) HONORABLE PAUL D. CONNICK, JR. ATTORNEY AT LAW PLAQUEMINE PARISH DENTENTION (APPELLEE) LOUISIANA APPELLATE PROJECT CENTER DISTRICT ATTORNEY 1215 PRYTANIA STREET 110 PRISON ROAD BLAIR C. CONSTANT (APPELLEE) SUITE 332 BRAITHWAITE, LA 70040 ASSISTANT DISTRICT ATTORNEY NEW ORLEANS, LA 70130 TWENTY-FOURTH JUDICIAL DISTRICT 200 DERBIGNY STREET GRETNA, LA 70053